Calls for social media platforms to crack down on hate speech but is there a definition of ‘hate speech’ under Australian Federal Law?

25 March 2019

Publications

The live streaming of the recent horrific events in Christchurch have led to calls for social media platforms to do more to prevent ‘hateful’ content, including ‘hate speech’, from being displayed on their platforms.  The extent to which the controllers of social media platforms should actively police content can be debated.  This blog post does not seek to enter into that debate but takes a step back and looks to identify and discuss the principal piece of Australian Federal legislation that is relevant to determining what might constitute ‘hate speech’ under Australian Federal law.1

The term ‘hate speech’ itself is not used in any Australian Federal legislation.  However, section 18C of the Racial Discrimination Act 1975 (Cth) (the Act), is commonly considered to prohibit ‘hate speech’ in the context of racial discrimination. In this regard, the Australian Human Rights Commissioner has referred to the Act as: ‘providing a legal avenue for Australians to hold racial hate speech to account‘.2

In general terms, and subject to a number of exemptions, section 18C of the Act makes unlawful: public acts which are based on the race, colour, national or ethnic origin of a person or group of people, if the acts are reasonably likely in all the circumstances to offend, insult, humiliate or intimidate that person or group of people.  Publishing material on a social media platform would come within the scope of a public act.3

In general terms, the exemptions to section 18C of the Act include the following if done reasonably and in good faith:

  • performances, exhibitions or distributions of artistic works;
  • publications, discussions or debates on matters of public interest;
  • fair and accurate reports on matters of public interest; or
  • fair comment on any events or matters of public interest if the comment is an expression of the genuine belief of the person making the comment.

A contravention of section 18C of the Act is not a criminal offence.  An aggrieved person may make a complaint to the Australian Human Rights Commission (AHRC).  The AHRC may attempt to conciliate the complaint but it does not have any powers to impose an outcome.  If a complaint cannot be conciliated, the aggrieved person may commence Court proceedings.

As section 18C is limited to the field of racial discrimination, it cannot, of course, provide a basis for a complete legal definition of hate speech.  However, extending the framework in section 18C to other attributes which are commonly the subject of anti discrimination legislation (for example sexual orientation, religion, gender, gender identity and disability) could provide a basis for a complete definition.

As regards the approach taken by the Courts to section 18C, the Courts have tended to avoid taking a broad approach to the concept of ‘offend’, requiring that the harm be ‘profound and serious’ and it not be ‘likened to mere slights’.4  Nevertheless, this did not prevent the Government introducing draft legislation in 2017 to amend section 18C so as to replace the words ‘offend, insult or humiliate’ with the word ‘harass’.5  However, this draft legislation did not pass the Senate.

Resources

1 The regulation of telecommunications services (which would include internet and social media platforms) is subject to Federal law.

2 https://www.humanrights.gov.au/news/opinions/australias-hate-speech-laws

3 Prior v Queensland University of Technology and Others [2016] FCCA 2853.

4 Creek v Cairns Post Pty Ltd (2001) 112 FCR 352; Prior v Queensland University of Technology and Others [2016] FCCA 2853.

5 Human Rights Legislation Amendment Bill 2017.